Proving the Disability
It is clear that the plaintiff has the burden of proof at first instance. The issue of the burden of proof has taken on undue complexity in the case law and should not be so easily defined, as suggested by the above sentence.
The evidence must establish, that there is proof of total disability, 1 which is a “traditional objective test”. This burden applies to both own occupation and any occupation claims. 2
The need to search for a diagnosis was considered in a 1998 decision of the B.C. Supreme Court. 3 The plaintiff asserted that she was disabled due to fibromyalgia, to which the insurer replied that there was no such disease then recognized by medical science. The court found that it was not necessary to present an affirmative medical diagnosis as to the cause of the symptoms to prove that there was a proven disability. The Court of Appeal agreed.
The same decision did note that it was theoretically possible to make such a finding based on solely the plaintiff’s evidence, yet the test is not entirely subjective.
The assessment of disability is a question of fact which is dependent on the wording of the policy and the assessment of the court of the abilities of the insured. 4
Similar to the conclusion above, 5 the Supreme Court of British Columbia 6 determined that the significant fact entitling the plaintiff to a disability entitlement was not the specific diagnosis, which was controversial, but rather the symptoms which prevented her from working.
To the same end was the decision of the Queen’s Bench of Saskatchewan 7 in in which the court decided it was not necessary to categorically determine the disease or diseases from which the plaintiff suffered.
As was noted by the Supreme Court of Newfoundland & Labrador 8 the above reference does not exclude an assessment of the plaintiff’s own evidence, nor “does it preclude the possibility of the Plaintiff’s evidence being sufficient to prove the claim”. Equally the need for “objective evidence” does not necessarily mean “objective medical evidence”.
This issue was again reviewed in the Manitoba Court of Appeal, 9in which the court examined the finding of the trial judge who had stated that in the absence of objective and reliable evidence, the case may nonetheless be proven by subjective symptoms.
The Court of Appeal cited with approval the words of the Supreme Court 10 and Mathers, as referenced above, noting that the test must generally be met by “objective medical evidence”. However, the court also observed in certain situations, a claimant’s own evidence may be enough to prove the case, where “it is consistent with the surrounding circumstances,” as was used by the trial judge. The Court continued to note, however, that it would be rare for the claim to be proven by the evidence of the insured alone.
The test of disability in an employment context would be expected to be both objective and subjective.
This is similar to the conclusion a decision of the Alberta Queen’s Bench 11 in which in assessing the eligibility for total disability, the court stated that it “must impose a subjective test to an objective standard of reasonableness”.
This issue was also reviewed in a decision of the Alberta Court of Appeal.12 The plaintiff had received benefits for more than four years due to irritable bowel syndrome, at which time the insurer denied the claim due to the lack of a physical diagnosis. The relevant wording of the policy in debate was “unable to perform the duties of any occupation for which he is or may become suited by reason of education, training or experience.”
The plaintiff succeeded at trial and again on appeal. The trial judge’s conclusion that there was an evidentiary basis to find for the plaintiff, even in the absence of a medical diagnosis, was upheld.
The courts have also made clear that where the alleged disability is proven by only the claimant’s own evidence, or is supported by medical evidence which itself is based on the plaintiff’s own narrative, the plaintiff’s credibility must be scrutinized. 13
A plaintiff’s subjective reports of pain may not lead to the conclusion of a disability. Pain itself must be connected to a sickness or injury.14
The Manitoba Court of Appeal 15considered the issues inherent in adjudicating upon a claim based on chronic pain.
In such cases, the court noted, there is generally little objective evidence from independent objective sources, such as x-ray reports or the results of clinical testing. Further, it was stated, while pain may be debilitating, it can also be exaggerated or even invented. The credibility of the plaintiff will then take on an added emphasis, which is consistent with the above decision. 16
Mr. Justice Masuhara 17 considered a case in which the plaintiff did not dispute that there were no objective medical findings of pain and also agreed that his degree of pain was out of proportion to any physical injuries which he had suffered.
The judge noted that a court should proceed cautiously when there is little or no objective evidence and where pain endures beyond the expected time periods.
The specific policy wording must always be considered. In one case, the policy stated that “the insured’s disability must result from sickness or injury”. The pain alleged by the plaintiff must hence be disabling, but also caused by such sickness or injury. 18 In this case, the plaintiff, stated the Court of Appeal, upholding the trial judgment dismissing the action, must “usually” show objective medical evidence.
However, 19McCawley J. noted that a disability may be proven even lacking “objective, measurable evidence”.
The decision of the B.C. Supreme Court 20considered the issue of a plaintiff who was qualified for LTD based upon a medical condition of depression and later suffered from a separate illness.
Under the policy definition of “totally disabled”, the plaintiff’s benefits could be terminated only if she ceased to have “a medically determinable physical or mental impairment due to injury or disease”.
The insurer proceeded upon the premise that, having approved the plaintiff due to her mental condition, this limited her eligibility for further entitlement based upon only this condition.
The policy did not adhere to this interpretation as it addressed the right to terminate only at which time “the member is no longer totally disabled”. As the plaintiff also suffered from physical impairment which reflected a total disability, the claim was allowed.
The Supreme Court of Canada in Saadati v. Moorehead spoke to the issue of the need for a medical diagnosis in a negligence claim. It concluded that such evidence was not mandatory.
Confining compensable mental injury to conditions that are identifiable with reference to these diagnostic tools is, however, inherently suspect as a matter of legal methodology. While, for treatment purposes, an accurate diagnosis is obviously important, a trier of fact adjudicating a claim of mental injury is not concerned with diagnosis, but with symptoms and their effect (Mulheron, at p. 88)
. . .
In other words, the trier of fact’s inquiry should be directed to the level of harm that the claimant’s particular symptoms represent, not to whether a label could be attached to them.
This same view was taken in a claim for long term insurance benefits in an arbitral decision in 2017. 21